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BURMA: Abused child worker who seeks justice suffers further abuse in courtroom

August 27, 2012

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-149-2012

27 August 2012
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BURMA: Abused child worker who seeks justice suffers further abuse in courtroom

ISSUES: Administration of justice; violence against women
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Dear friends,

The Asian Human Rights Commission (AHRC) recently brought you details of a case in which police conspired with the employer of a young girl who allegedly abused and murdered her to cover up the facts (AHRC-UAC-136-2012). In this Urgent Appeal, we wish to inform you of another case in which a young girl who has been severely brutalized by her employer has brought a charge against the employer to court; however, the judge and other authorities are clearly siding with the employer and are further traumatizing the girl in order to derail the case.

CASE NARRATIVE:

On 5 July 2012 Daw Khin Nilar Win physically assaulted an underage girl who had recently started working at her house in Mandalay [name withheld], for failure to sweep as she had been instructed. During the assault, Khin Nilar Win hit the girl with a chair and with high heels. The employer then said that she would show the girl how to iron smoothly, and applied a hot iron to her leg. She also scrubbed her arm with an iron brush, telling her "this is how to scrub". As a result of the assault the complainant suffered abrasions to her head and face, her left arm was fractured, and she had burns and bruising.

After the assault, the complainant fled from the house and sought help from people she knew in the neighbourhood. This assault was not the first that the girl had suffered. According to information that came out subsequently, she had not only been beaten but had also already been forced to eat mosquito protection coil, causing her to vomit a foamy liquid; and, was on another occasion forced to lick up tamarind leaves that she had dropped onto a rough concrete floor.

As the girl was known to have already suffered abuse, people in the vicinity immediately offered her support. She went with local people to the police and lodged a report the same day. The police opened a case for causing grievous hurt, which was lodged in court. However, the prosecutor changed the charge from grievous hurt, which has a punishment of up to seven years, to simple hurt, which has a maximum of one year. And, instead of hearing the case fairly the judge together with the prosecutor and defence attorney has instead undermined the judicial process and has pressured the complainant to make a financial settlement with her abuser.

On August 13 when the complainant's case was opened in court, to the surprise of local people the judge refused permission to the complainant to have a private attorney represent her in court alongside the prosecutor. Instead, the judge allowed the defence lawyer to dominate proceedings, and for two hours ridicule the defendant and ask her demeaning and irrelevant questions, such as that, "Can you read? Can you recite ABC?", and "Are you going to ask for tens of millions to settle?" and, "Who put you up to this?" The lawyer also cut her off when she tried to tell what had happened to her, saying that her allegations were irrelevant, and neither the prosecutor nor judge did anything in response.

In addition to these events in the courtroom, the defendant and her husband have through deception reportedly obtained the record of the initial medical examination of the complainant, and that the girl's supporters fear that they will destroy or manipulate evidence of the alleged crime.

Persons attending court have said that they are confident that all of the authorities in this case have received bribes and other incentives to side with the assailant. According to a monk who is helping the young girl, Khin Nilar Win has boasted of her contacts up to the level of the regional police chief, and that the regional public prosecutor personally hired the defence lawyer for her. Therefore, prompt action is needed to change these officials and to ensure that the girl can obtain a fair trial and not suffer further abuses at the hands of the judicial authorities.

Additional details of the case are found in the sample letter below.

ADDITIONAL INFORMATION:

As we wrote in our recent appeal on the case of Ma Thin Thin Myat (AHRC-UAC-136-2012), such cases of abuse are by no means isolated. All across Myanmar, children are daily forced into modern forms of slavery: jobs for which they are paid insignificant amounts of money and are constantly subjected to heinous forms of abuse. The employers are often influential people with money and means to manipulate local authorities' behaviour and prevent any effective investigations of their crimes. Therefore, it is important that examples be set so that other perpetrators of similar forms of abuse be made to understand that they can indeed be held to account for their crimes, in order that the incidence of such crimes be reduced as quickly as possible.

To browse hundreds of other appeals on cases in Burma issued by the AHRC, visit the AHRC Burma homepage: http://www.humanrights.asia/countries/burma

The AHRC Burmese-language blog is updated for Burmese-language readers, and covers the contents of urgent appeal cases, related news, and special analysis pieces.

SUGGESTED ACTION:

Please write to the persons listed below to call for action to be taken to ensure that the complainant in this case gets a fair trial. Please note that for the purposes of the letter Burma is referred to by its official name, Myanmar.

Please be informed that the AHRC is writing separate letters to the UN Special Rapporteurs on Myanmar; violence against women; contemporary forms of slavery, and on the sale of children, and the regional human rights office for Southeast Asia calling for interventions into this case.

SAMPLE LETTER:

Dear ___________,

MYANMAR: Judicial officers attempt to prevent abused child worker from obtaining justice

Details of victim: [name and personal details withheld], 14, female

Details of alleged perpetrator of abuse: Daw Khin Nilar Win, alias Daw Ni Ni, resident of Seinpan Ward, Mandalay

Date of incident: 5 July 2012, reported to Police Station No. 7, Mandalay on the same day (FIR No. Pa-381/2012); investigated by Detective U Thaung Han

Details of court case: Sections 294/323 of the Penal Code, for obscenity and causing hurt, Criminal Case No. 966/2012, Maha-aungmyay Township Court, Mandalay, Additional Township Judge (No. 2) Daw Nwei Ni Oo presiding, Law Officer Daw Thin Thazin

I am writing to you because I am gravely concerned at the treatment of a 14-year-old girl who has approached the police and court in Mandalay, Myanmar, to obtain justice fort the abuse that she allegedly suffered at the hands of an employer. Instead of being treated respectfully and in accordance with the law, the judge and prosecutor in the case are apparently conspiring to derail the proceedings. Furthermore, they have allowed the girl to be treated in court in a manner that not only denies her basic dignity as a human being but also further traumatizes her, on top of the abuses that she has already suffered.

According to the information that I have received, on 5 July 2012 Daw Khin Nilar Win physically assaulted the complainant, an underage girl who had recently started working at her house in Mandalay, for failure to perform a menial task. During the assault, Khin Nilar Win allegedly hit the girl with a chair and with high heels. The employer then allegedly said that she would show the girl how to iron smoothly, and applied a hot iron to her leg. She also scrubbed her arm with an iron brush, telling her "this is how to scrub". As a result of the assault the complainant suffered abrasions to her head and face, her left arm was fractured, and she had burns and bruising.

After the assault, the complainant fled from the house and sought help from people she knew in the neighbourhood. This assault was not the first that the girl had suffered, and as she was known to have already suffered abuse, people in the vicinity immediately offered her support. According to a letter submitted by a monk to the Mandalay High Court, dated 16 August 2012, he himself observed fresh and older scars and bruises all over her body.

She went with local people to the police and lodged a report the same day. The police opened a case for causing grievous hurt, which was lodged in court. However, the prosecutor, Daw Thin Thazin, changed the charge from grievous hurt, which has a punishment of up to seven years, to simple hurt, which has a maximum of one year. And, instead of hearing the case fairly the judge together with the prosecutor and defence attorney has instead undermined the judicial process and has pressured the complainant to make a financial settlement with her abuser.

On August 13 when the complainant's case was opened in court, to the surprise of local people the judge refused permission to the complainant to have a private attorney represent her in court alongside the prosecutor. Instead, the judge allowed the defence lawyer to dominate proceedings, and for two hours ridicule the defendant and ask her demeaning and irrelevant questions, such as that, "Can you read? Can you recite ABC?", and "Are you going to ask for tens of millions to settle?" and, "Who put you up to this?" The lawyer also cut her off when she tried to tell what had happened to her, saying that her allegations were irrelevant, and neither the prosecutor nor judge did anything in response.

In addition to these events in the courtroom, I am told that the defendant and her husband have through deception obtained the record of the initial medical examination of the complainant, and that the girl's supporters fear that they will destroy or manipulate evidence of the alleged crime.

From the above information, I am forced to conclude that due to bribery or influence of the defendant, the professionals in the courtroom process are colluding to force the case out of court through a settlement, or to reach a verdict, if it is necessary to reach one, that will favour the defendant. Indeed, persons attending court have claimed that Khin Nilar Win has boasted of her contacts up to the level of the regional police chief, and that the regional public prosecutor, U Ye Aung Myint, personally hired the defence lawyer for her.

I am aware that in recent times the Government of Myanmar has spoken out repeatedly on the matter of judicial malfeasance and corruption, and that a number of parliamentary debates have acknowledged the extent of corruption in the judicial system and parliamentarians have urged that action be taken to address this problem. I am also aware that a number of committees are involved in the receipt and investigation of complaints at the parliamentary level, in parallel with agencies in other part of the state apparatus.

Accordingly, I urge that this case be subject to prompt investigation and action. Sufficient doubt has been cast on the credibility of the judge and prosecutor in this case that both of them ought to be changed immediately, since the right of the complainant to a fair trial is the foremost priority and the matter of highest urgency. The judicial personnel involved should also be subject to inquiries to determine if in fact they have accepted bribes or otherwise been influenced to undermine the outcome in this case, and if their superiors also are complicit. In the event of findings to this effect, I urge prompt and effective action against these persons to ensure that they are no longer able to cause miscarriages of justice of the sort manifest in this case.

Lastly I also call on the concerned authorities to ensure that the young girl in this case obtain full necessary medical treatment, both physical and mental, to ensure her long-term recovery from the abuses that she has suffered at the hands of this employer.

Yours sincerely,

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PLEASE SEND YOUR LETTERS TO:

1. U Hla Min
Minister for Home Affairs
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +95 67 412 439

2. U Thein Sein
President of Myanmar
President Office
Office No.18
Naypyitaw
MYANMAR

3. U Tun Tun Oo
Chief Justice
Office of the Supreme Court
Office No. 24
Naypyitaw
MYANMAR
Tel: + 95 67 404 080/ 071/ 078/ 067 or + 95 1 372 145
Fax: + 95 67 404 059

4. Dr. Tun Shin
Attorney General
Office of the Attorney General
Office No. 25
Naypyitaw
MYANMAR
Tel: +95 67 404 088/ 090/ 092/ 094/ 097
Fax: +95 67 404 146/ 106

5. U Kyaw Kyaw Htun
Director General
Myanmar Police Force
Ministry of Home Affairs
Office No. 10
Naypyitaw
MYANMAR
Tel: +95 67 412 079/ 549 393/ 549 663
Fax: +951 549 663 / 549 208

6.Thura U Aung Ko
Chairman
Pyithu Hluttaw Judicial and legislative Committee
Pythu Hluttaw Office
Naypyitaw
MYANMAR.

7.U Aung Nyain
Chairman
Pyithu Hluttaw Judicial and Legislative Committee
Committee for Public complain and appeals
Office of Amyotha Hluttaw
Naypyitaw
MYANMAR

8. U Win Mra
Chairman
Myanmar National Human Rights Commission
27 Pyay Road
Hlaing Township
Yangon
MYANMAR
Tel: +95-1-659668
Fax: +95-1-659668

9. Ko Ko Hlaing
Chief Political Advisor
Office of the President
Naypyitaw
MYANMAR
Tel-+951532501ext-605
Fax-+951 532500


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (AHRC)

Document Type :
Urgent Appeal Case
Document ID :
AHRC-UAC-149-2012
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.